Tuesday, July 12, 2011

Donohue on Biodefense and Constitutional Constraints in History

Legal historians don't usually think about disease as a driving force in history, although Michael Willrich makes a major contribution in his new book Pox: An American History. Laura Donohue, Georgetown, looks at the intersection of disease and defense in a new paper that draws from her graduate work at Cambridge University. I recently heard Donohue give an excellent talk based on this work. The paper is Biodefense and Constitutional Constraints. It is forthcoming in the National Security and Armed Conflict Law Review. Here's the abstract:

The United States and United Kingdom each frame the threat posed by pandemic disease and biological weapons as a national security concern. In both countries, moreover, identifying and responding to the threat posed by, on the one hand, naturally-occurring disease and, on the other, man-made biological agents, are linked. Where the two countries part ways is in what they see as the role of the central government and most effective response to the twin threats. U.S. federal law and policy anticipates the federal imposition of quarantine and isolation. The United Kingdom does not. This article offers a novel explanation for why the two countries have assumed such different approaches. It suggests that the answer is deeply historical, shaped by each country’s unique experiences with disease, as well as each country’s constitutional framework. The two countries have followed distinct - and essentially reverse - trajectories, which continue to influence the manner in which current law and policy has evolved in respect to pandemic disease and biological weapons.

In the United States, what started during the colonial period as a decidedly local authority evolved to be a local and state authority. For more than a century, the federal government proved reluctant to interfere. It was not that disease did not pose a severe threat - or, indeed, that it was never used as a weapon. To the contrary, the colonies and, later, the states, had significant concerns about the effects of disease and, even during the Revolutionary War, there was evidence and widespread belief that the British used smallpox as a weapon. During the Civil War there were several reported efforts by the Confederates to use biological weapons against Union forces. But the federal government did not adopt quarantine authorities. Quarantine was widely regarded as a central tenet of state police powers. It was so decidedly local, that many states explicitly gave towns the authority to exclude any persons or goods believed to carry sickness - even if they traveled or were transported from other U.S. cities or states.

During the late nineteenth century, the balance of power subtly shifted. The federal government avoided a direct Commerce Clause assertion and, instead, began to use the power of the purse to buy up local and state ports, transferring their operation to federal control. Federal statutory and regulatory authorities followed. By the end of the twentieth century, federal quarantine law - at least in respect to inter-state travelers and those entering or leaving the country - had become firmly established. By the early 21st century, policy documents had begun to refer to the potential use of quarantine to respond either to pandemic or targeted attacks, shifting the discussion to Article II and foreign affairs. National security demanded a federal, not a state, response. Post-Hurricane Katrina, an even more visible discussion emerged, tied to the precise role of the military in enforcing domestic provisions.

The United Kingdom, in contrast, developed in the opposite direction. The first recorded quarantine orders, issued under Henry VIII, demonstrate a monarch willing to use the military to exercise his Royal Prerogative. As the constitutional structure of the country changed, the manner in which quarantine was accomplished altered. With the Stuarts’ realization that quarantine could be wielded as a powerful political tool, use of the provisions led to greater friction with Parliament. The Privy Council reformed its approach, seeking statutory authorization prior to issuing orders. The demise of the Council and transfer of public health authorities to Parliament led to the abandonment of broad quarantine power. Commercial interests lobbied it out of existence. Aided by medical treatises, the 19th century sanitation movement, and the growth of a professional bureaucracy, local port authorities and public health provisions took their place. Accordingly, by the early twenty-first century, no broad quarantine laws existed, and such policy documents as were issued to outline the government’s response in the event of biological weapons or pandemic disease specifically noted that quarantine would not be used.

Threading through each account is the importance of the type of threat faced. The specific diseases each country confronted, which differed, played a key role in shaping subsequent measures. The United States struggled with yellow fever, smallpox, and cholera. The United Kingdom developed its law primarily in response to plague. This influenced the contours of the measures and the groups most impacted by quarantine, leading to a tolerance of such provisions on the American side of the Atlantic, and a rejection of the same on British shores.

1 comment:

I want to second Mary's plug of my colleague Laura Donohue's paper. Do not be misled by its policy wonkish title and placement. This is a deeply researched and sweeping comparative constitutional history of quarantine in the United States and the United Kingdom. It’s a topic I’ve quite overlooked, but it is, in Donohue’s hands, enormously thought-provoking.